[Ppnews] A Tired Obsession with Military Detention Plagues American Politics

Political Prisoner News ppnews at freedomarchives.org
Sat Jan 7 12:38:52 EST 2012

A Tired Obsession with Military Detention Plagues American Politics

Andy Worthington


Before the terrorist attacks on September 11, 
2001, there were only two ways of holding 
prisoners ­ either they were prisoners of war, 
protected by the Geneva Conventions, or they were 
criminal suspects, to be charged and subjected to federal court trials.

That all changed when the Bush administration 
threw out the Geneva Conventions, equated the 
Taliban with al-Qaeda, and decided to hold both 
soldiers and terror suspects as “illegal enemy 
combatants,” who could be imprisoned indefinitely 
without charge or trial, and with no rights whatsoever.

The Bush administration’s legal black hole lasted 
for two and a half years at Guantánamo, until, in 
v. Bush in June 2004, the Supreme Court took the 
unprecedented step of granting habeas corpus 
rights to prisoners seized in wartime, 
recognizing ­ and being appalled by ­ the fact 
that the administration had created a system of 
arbitrary, indefinite detention, and that there 
was no way out for anyone who, like many of the 
prisoners, said that they had been seized by mistake.

This was not the end of the story, as the Bush 
administration fought back, Congress attempted to 
strip the prisoners of their habeas rights in the 
Treatment Act of 2005 and the Military 
Commissions Act of 2006 
and the Supreme Court had to revisit the 
prisoners’ cases in June 2008, in 
v. Bush, reiterating that they had habeas corpus 
rights, and that those rights were constitutionally guaranteed.

Unfortunately, although this ruling enabled some 
of the Guantánamo prisoners to 
their release via the US courts, by having their 
habeas corpus petitions granted, the appeals 
court in Washington D.C. (the D.C. Circuit Court) 
has been fighting back, 
habeas corpus as a remedy by insisting, 
ludicrously, that the government’s evidence, 
however obviously unreliable, should be given the presumption of accuracy.

While this continues to be fought over, the 
bigger problem is that the entire rationale for 
Guantánamo has never been adequately challenged. 
The basis for holding prisoners is the 
for Use of Military Force, passed the week after 
the 9/11 attacks, which authorizes the president 
“to use all necessary and appropriate force 
against those nations, organizations, or persons 
he determines planned, authorized, committed, or 
aided the terrorist attacks that occurred on 
September 11, 2001, or harbored such 
organizations or persons, in order to prevent any 
future acts of international terrorism against 
the United States by such nations, organizations or persons.”

in June 2004, while granting the Guantánamo 
prisoners habeas rights, the Supreme Court also 
confirmed, in 
v. Rumsfeld, that the AUMF allows prisoners to be 
detained until the end of hostilities, thereby 
confirming the AUMF as an alternative to the 
Geneva Conventions, without anyone in a position 
of authority being required to explain why the 
Geneva Conventions no longer apply to soldiers, 
and why terror suspects are being held as “warriors,” rather than as criminals.

With this fundamental misconception ­ or this 
warped reshaping of the rules governing detention 
­ which was at the heart of the Bush 
administration’s “war on terror,” and is 
confirmed in the continued reliance on the AUMF 
by all three branches of the government, it is no 
wonder that it has become impossible to even 
mention the fact that wartime detentions used to 
accord with the Geneva Conventions, and it has 
also become impossible for advocates of federal 
court trials for criminals to win out over those 
calling for military commission trials instead, 
even though hundreds of terror suspects have been 
successfully prosecuted in federal courts in the 
last ten years, as opposed to 
six in military commission trials.

The result of this unilateral rewriting of the 
rules governing wartime detentions is that 
soldiers remain held at Guantánamo where they are 
lazily, but dangerously regarded as terrorists, 
and the wartime prisoners held in actual combat 
zones ­ 
Bagram, for example ­ are not held according to 
the Geneva Conventions, but are detained 
arbitrarily, and are then subjected to invented 
review boards so that the military can decide 
what to do with them. This ought to be a cause 
for alarm, but it is apparently taken for granted.

In addition, the result of the insistence that 
terror suspects must not be tried in federal 
courts has had far-reaching effects that, in the 
last few weeks, have been causing great 
consternation to libertarians and liberals alike.

On the face of it, this consternation is 
well-founded. In provisions inserted by Congress 
into the 2012 
Defense Authorization Act, lawmakers insisted on 
creating legislation that makes it mandatory for 
terror suspects to be held in military custody, 
without charge or trial, and not to be allowed 
anywhere near the federal court system.

The mere fact that lawmakers could have worked 
themselves up into enough of a frenzy to pass 
this legislation is profoundly depressing, of 
course, but as Marty Lederman and Steve Vladeck 
explained in an article for the 
blog on December 31, intense negotiations between 
the administration and Congress, with input from 
numerous deeply concerned groups and individuals, 
succeeded in watering down the intent behind this 
provisions so that it is not really appropriate 
for critics to wail that the NDAA will allow 
Americans to be held indefinitely in military custody. As they explained:

[S]ection 1022 purports to establish a 
presumption in favor of indefinite military 
detention, rather than criminal arrest and 
prosecution, for some future foreign al-Qaeda 
the President’s words, it is in this respect 
“ill-conceived and will do nothing to improve the 
security of the United States,” and “is 
unnecessary and has the potential to create 
uncertainty.” Fortunately, amendments adopted 
late in the legislative process 
 will, we think, 
ensure that section 1022 is mostly hortatory, and 
will in practice allow the President to adhere to 
commitments that “suspected terrorists arrested 
inside the United States will ­ in keeping with 
long-standing tradition ­ be processed through 
our Article III courts, as they should be”; that 
“our military does not patrol our streets or 
enforce our laws ­ nor should it”; and that “when 
it comes to US citizens involved in 
terrorist-related activity, whether they are 
captured overseas or at home, we will prosecute 
them in our criminal justice system.”

Even so, as Marty Lederman and Steve Vladeck also 
explained, drawing on 
made by Raha Wala of Human Rights First, “the 
very existence of section 1022 might give a 
future Administration a slight measure of 
political cover if it decides to reverse 
President Obama’s policy and begin to detain in 
military custody persons such as another 
Abdulmutallab, who are captured in the United States.”

This is a reference to Umar Farouk Abdulmutallab, 
the failed Christmas 2009 plane bomber, whose 
trial and successful conviction confirmed that 
the advocates for military custody are driven not 
by common sense but by irrational fears ­ or 
cynical fearmongering. The courts are perfectly 
capable of safely and effectively prosecuting 
terror suspects, and lawmakers’ attempts to 
insist otherwise, if left unchallenged, were 
likely to have been dangerously counterproductive rather than helpful.

Nevertheless, while obvious disaster appears to 
have been averted, the huge outpouring of alarm 
regarding the perceived plan to imprison 
Americans indefinitely without charge or trial 
ignores two fundamental issues that still need 
addressing: firstly, that President Obama has 
shown himself more than willing to dispose of US 
citizens he regards as troublesome not by 
imprisoning them, but by 
them in drone strikes; and, secondly, that the 
foreign victims of the indefinite detention that 
lawmakers have shown themselves so desperate to 
revive still need Americans to care about their 
plight, to bring to an end the unjust situation 
that has existed for the last ten years, and to 
cut off the possibility that lawmakers, or the 
executive branch, can decide in future to revisit 
these dreadful policies and to revive them again.

As Marty Lederman and Steve Vladeck noted, 
drawing on an article in the 
York Review of Books by David Cole:

David Cole is surely correct that Subtitle D 
of the NDAA contains some very troubling 
provisions ­ especially sections 1026 and 1027, 
which continue the deeply unfortunate and 
counterproductive authorities in current law 
prohibiting the use of funds to build a facility 
in the US to house GTMO detainees and to transfer 
any such detainees to the US for any reason, 
including criminal trial; and section 1028, which 
continues the current statutory requirement that 
the Secretary of Defense must make onerous 
certifications regarding the receiving nation’s 
security measures before any GTMO detainee can be 
transferred to another country. These provisions 
will continue to prevent the closure of the 
detention facility at Guantánamo, notwithstanding 
President’s view, which we share, that “the 
prison at Guantánamo Bay undermines our national 
security, and our nation will be more secure the 
day when that prison is finally and responsibly closed.”

These are valid points indeed, and with the 10th 
anniversary of the opening of Guantánamo taking 
place next week, it is important for US citizens 
to recall that the fount of the recent hysteria 
directed, initially, at Americans as well as 
foreigners, is the enduring legacy of the Bush 
administration at Guantánamo, where these dark 
desires have been inflicted on foreign Muslims 
for the last ten years, and where the will to 
close this dangerous aberration is lacking in 
both the administration and in Congress.

Andy Worthington is the author of 
Guantánamo Files: The Stories of the 774 
Detainees in America’s Illegal Prison (published 
by Pluto Press, distributed by Macmillan in the 
US, and available from Amazon ­ click on the 
following for the 
and the 
and of two other books: 
Celebration and Subversion and 
Battle of the Beanfield. To receive new articles 
in your inbox, please subscribe to my 
<http://www.andyworthington.co.uk/feed/>RSS feed 
(and I can also be found on 
<http://digg.com/aworthington>Digg and 
Also see my 
Guantánamo prisoner list, updated in June 2011, 
Complete Guantánamo Files,” a 70-part, 
million-word series drawing on files released by 
WikiLeaks in April 2011, and details about the 
documentary film, 
the Law: Stories from Guantánamo” (co-directed by 
Polly Nash and Andy Worthington, and available on 
­ or 
for the US). Also see my 
Guantánamo habeas list and 
chronological list of all my articles, and, if 
you appreciate my work, feel free to 
a donation.

As published exclusively on the website of the 
<http://www.fff.org/comment/com1201c.asp>Future of Freedom Foundation.

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